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[2016] ZAWCHC 41
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Webstor N.O v Mohr N.O (13645/15) [2016] ZAWCHC 41 (15 March 2016)
THE
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 13645/15
DATE:
15 MARCH 2016
In
the matter between:
NEIL
WEBSTER
N.O
.................................................................................................................
Plaintiff
In
his capacity as trustee of
THE
CYNTHIA DOREEN MOHR WILL TRUST
And
GARY
MOHR
N.O
...................................................................................................................
Defendant
In
his capacity as executor in the
ESTATE
LATE JACOB GERHARDUS MOHR
JUDGMENT
DELIVERED ON 15 MARCH 2016
BOQWANA J
[1]
The plaintiff brought an application
for default judgment on the basis that the defendant is barred from
pleading. The defendant
contends that the particulars of claim are
excipiable. It instituted a counter application to have the notice of
bar declared an
irregular step, alternatively, to have the late
delivery of an exception condoned.
[2]
On 21 June 2015, the plaintiff
launched an action against the defendant in the amount of R
847 000.00. The defendant served
its notice of intention to
defend on 07 August 2015. A notice of bar was delivered by the
plaintiff on 10 September 2015, calling
upon the defendant to deliver
its plea within five days of the delivery of the notice, failing
which it would be
ipso facto
barred. On 15 September 2015, the defendant served the
plaintiff with a notice in terms of rule 23 (1) that it intended
raising an exception to the plaintiff’s particulars of claim on
the basis that they are vague and embarrassing and/or that
they do
not disclose a cause of action. The plaintiff was afforded fifteen
days to remove the said causes of complainant failing
which the
defendant reserved its right to raise an exception to the particulars
of claim. The plaintiff did not remove the cause
for complaint nor
did the defendant bring the exception upon the expiry of the stated
period.
[3]
The defendant lodged an application
for default judgment and set it down for 19 November 2015. The
defendant brought a counter application
for the setting aside of the
application for default judgment on the basis that it was an
irregular step in terms of Rule 30, alternatively
to have late
delivery of the exception be condoned, the bar be lifted and the
defendant be granted consequential extension in terms
of Rule 27. The
exception was simultaneously filed with the Notice in terms of Rule
30. The parties agreed that all issues brought
before the Court
should be heard including the exception.
[4]
The crux of
the plaintiff’s case is that upon the expiry of its notice of
intention to raise an exception, the chain or sequence
was broken, in
that the defendant failed to file a pleading or the exception. It
further failed to comply with a notice of bar
brought in terms of
Rule 26. It could no longer bring the exception. It is further
submitted on behalf of the plaintiff that no
condonation has been
asked by the defendant for bringing the exception late.
[5]
An
exception is a pleading and cannot be objected to as having been
filed out of time unless a notice of bar has been given.
[1]
While it has become practise to call for delivery of a plea in the
notice of bar, and what the defendant is effectively called
upon to
do in terms of a notice of bar is to deliver a pleading which may be
a plea with or without a counterclaim, an exception
or a notice to
strike out.
[2]
The point raised
by Langenhoven on behalf of the plaintiff is that the notice of
intention to except itself is not a pleading and
this seems to be
common cause between the parties. The plaintiff’s contention
however is that the delivery of the notice
of intention to except
simply suspends the period of bar pending further steps to remove
complaint by the plaintiff or bringing
of the exception by the
defendant which did not happen in this case. Mr Steenkamp on the
other hand, submits on behalf of the defendant
that the bar was
interrupted by the delivery of the notice to except to the
plaintiff’s particulars of claim. Therefore upon
its expiry,
the plaintiff should have delivered a fresh notice of bar before
applying for default judgment. Mr Steenkamp submits
that the court,
in any event, does not need to decide that issue because the
particulars of claim are excipiable
ex
facie
and the court cannot grant default judgment under those
circumstances.
[6]
The question to determine therefore
is whether the notice of exception is a proper response to delivery
in terms of the notice of
bar. This is the issue that the Court in a
judgment of this division,
McNally NO
and Others v Codron and Others
supra
also had to decide. It had been raised on behalf of the defendants in
that case that the notice of exception constitutes the
taking of the
next procedural step after service of a notice of bar. Counsel for
the defendants argued that being a procedural
step, it was competent
for a defendant to serve a notice of exception during the bar period.
He relied on the remarks of Griffiths
AJ in the decision of
Landmark
Mthatha v King Sabata Dalindyebo Municipality
2010 (3) SA 81
ECM at 86E-F to advance this proposition.
[7]
Yekiso J was of the view that a
further step in the proceedings was one which advances the
proceedings one stage nearer to completion.
He referred to the
decision of
Jowell v Bramwell-Jones &
Others
1998 (1) SA 836
(W) at F-G,
where Heher J observed:
‘
A
further step in the proceedings is one which advances the proceedings
one stage nearer to completion and which, objectively viewed,
manifests an intention to pursue the cause despite the irregularity.
Seen in that light, the filing of a notice of exception, which
contains as an alternative an application to set pleadings aside
under the provision of Rule 18(2) read with Rule 30, does not
constitute the taking of a further step within the meaning of Rule
30(2).
Such an excipient is concerned
merely to make full use of the remedies which the Rules provide for
an attack on a defective pleading
.’
[8]
Yekiso J in
McNally
NO
supra, at para 23 concluded that
Heher J’s observations above, sought to differentiate between
further procedural steps that
tend to advance the proceedings towards
completion and those that do not constitute the taking of further
steps but merely provide
for an attack of a defective pleading. From
these decisions it can be surmised that the conclusive point is
whether the notice
to except is intended to advance the proceedings a
stage nearer to completion. In both the
Jowell
and
McNally
NO
decisions, it was found that the
objective sought by the notice of intention to except in those cases
could not be achieved by way
of a response to the notice of bar as
Yekiso J put it at para 25 of
McNally NO
supra, ‘
It is a remedy that would
have had to be utilised and resorted to within a period of twenty
(20) days as provided in rules 17(1)
and 22 (1) of the Uniform Rules
.
The notice of intention to except, as
taken in the instance of these proceedings, is an irregular step that
falls to be set aside.
’ The court
suggested in that instance, that if the defendant had elected to
except to the plaintiff’s particulars of
claim on the basis
that the particulars are vague and embarrassing they would have had
to file an exception within the twenty day
period of the notice of
intention to defend stipulated in Rule 17 (1) and 22(1) of the
Uniform Rules. It was found not to be competent
in that case for the
notice of exception as contemplated in rule 23 (1) to have been
delivered during the bar period in response
to a notice of bar.
[9]
The court seemed to suggest that if
the defendant’s exception was taken on the grounds that the
particulars of claim did not
disclose a cause of action (which is one
of the grounds in this case) that exception would have been a valid
response to the notice
of bar. The court stated that defendants in
that case could have raised an exception on that point, but it
elected not to do so.
On that issue the court held further that
‘
The delivery of an exception
on
the basis that the particulars of claim lack the averments which are
necessary to sustain a claim
,
would have been a regular step because the notice of bar calls for
the delivery of a pleading
.’(Own
underlining). (See para 24 of
Mc Nally
NO
supra).
[10]
If one follows
the reasoning adopted in
McNally
NO,
therefore a notice of intention to except that the particulars of
claim do not disclose cause of action such as the one in the
present
matter could well be seen to advance proceedings a stage nearer to
completion. It would follow therefore that the notice
would be a
procedural step calling for the removal of a complaint, and in these
circumstances that is a valid response to a notice
of bar. Therefore,
upon the expiry of the period stipulated in the notice for the taking
of further steps by either the plaintiff
or the defendant, it is my
view that a fresh notice of bar should have been delivered. The
delivery of the exception is therefore,
not incompetent in these
circumstances. It, in any event, seems to have been accepted by Mr
Langenhoven that the notice to except
was a competent procedural step
in response to the notice of bar. The point he makes is that the
notice to except suspended the
period of bar pending compliance with
the time periods stipulated in the notice. Therefore, according to
him, at the end of those
time periods the defendant became
ipso
facto
barred. This reasoning does not make sense in my view, in that if it
is accepted (as the plaintiff has) that the notice to except
was an
appropriate step or response to the notice of bar, it cannot be
argued at the same time that it did not interrupt the notice
of bar
when it was delivered.
[11]
Even if I am
wrong on this issue, I am of the view that good cause has been shown
for the lifting of the bar and for condonation
of the filing of the
exception outside the stipulated time to be granted. The defendant’s
attorney deposed to an affidavit
alleging that, the particulars of
claim are
ex
facie
excipiable.
She also alleges that given the patently deficient particulars of
claim, she assumed that the plaintiff would rather
elect to amend its
particulars of claim. While the plaintiff’s attorneys were
under no duty to communicate with her on what
their intentions were,
no communication preceded the filing of the default judgment. She
contends that she did not want to run
unnecessary costs if the
exception was due to become academic following amendments to the
particulars of claim which she presumed
would follow. She
thought it would be un-collegial to put due pressure on the plaintiff
to respond and she realises that
she made a mistake by making all
these assumptions.
[12]
The defendant’s attorney
indeed had a responsibility to contact the plaintiff to seek clarity
on their position and to confirm
whether her assumptions were correct
but she did not do so. Whilst the explanation she gives is not very
satisfactory, it is clear
that her actions were not intended to
deliberately disregard compliance with the rules of court. I am
however persuaded by the
allegations that the exception raised
constitutes a defence which is good in law. It is on that basis that
I find that a good case
has been made for condonation and extension
of the time for the delivery of the exception and for the bar to be
lifted.
[13]
Turning to the exception. As stated
before, parties agreed that the exception should also be argued and
determined along with the
other applications that were placed before
Court.
[14]
The exception raised by the
defendant is that the particulars of claim are vague and embarrassing
and/or that they do not disclose
a cause of action.
[15]
The first ground is that the
plaintiff is not the executor of the estate of the late Cynthia D
Mohr and consequently does not have
locus
standi
to institute a claim which is
ex
facie
in favour of the estate later
Cynthia D Mohr. The third point is that it is not clear whether the
cause of action is based on fraud
or enrichment and if it is
enrichment, what type of enrichment. Secondly, it is unclear how the
amount claimed was arrived at.
The further points are that the
particulars of claim are vague and embarrassing on the basis that: it
is unclear what the term
‘
the
testator in the Plaintiff Will Trust’
in paragraph 5 of the particulars of claim means; the plaintiff has
failed to plead the identity of the ‘
acquaintance’
referred to in paragraph 9 of the
particulars of claim and/or what relevance the reference to the
acquaintance
has to the claim; it is unclear what relevance paragraphs 9.1 to 9.3
of the particulars of claim have to the claim, furthermore
the said
paragraphs also constitute evidence; lastly it is unclear what is
meant by the term ‘
separable
’
at paragraph 10 of the particulars of claim.
[16]
Mr Steenkamp argued that the default
judgment cannot be granted on a claim that is
ex
facie
excipiable even if one were to
assume hypothetically that the claim was unopposed. I agree with this
proposition. The question
however is whether that is the case in this
present matter.
[17]
The claim is based on the alleged
‘fraudulent conduct’ of the late Mr Mohr which caused his
estate to be enriched in
that he wilfully and unlawfully altered an
investment policy (where the late Cynthia D Mohr had invested her
life savings) to include
himself as the sole beneficiary thereof.
[18]
A
question of whether a plaintiff has
locus
standi
is normally taken by way of special plea but if the fact appears in
the summons, the defendant is entitled to except to the summons
on
the basis that no cause of action is disclosed.
[3]
[19]
On its own the ground that the
plaintiff lacks
locus standi
to
institute action is quite compelling. It is trite that ‘
an
executor is the only person who is looked upon by the Court to
represent the estate of a deceased person and conversely an heir
is
not placed in a position of being able to deal with the assets
without the executor’s consent
.’
(See
Nyathi v Minister of Bantu
Administration and Others
1978 (3) SA
224
at page 227)
[20]
There is also no attempt to draw the
connection between the trust and the plaintiff on the particulars of
claim. If the alleged
fraud did indeed take place the claim would
vest with the deceased estate and not the trust.
[21]
The plaintiff sought to explain this
relationship in its opposing affidavit to the rule 30 application.
Particulars of claim cannot
be supplemented by documents outside the
pleading. For the purposes of determining the exception, the pleading
is looked at as
it stands, no facts outside it can be brought in
issue. Mr Langenhoven also attempted to provide an explanation from
the bar to
explain the issue of the plaintiff’s
locus
standi
which is obviously
impermissible.
[22]
Even if the additional allegations
were to be read into the pleading, it seems to me, they would still
not disclose the cause of
action, as the claim would still lie with
the executor of the estate of Ms Mohr and not with the purported heir
(i.e, the trust).
[23]
I am therefore persuaded that the
particulars of claim are
ex facie
excipiable and on this ground alone the
Court would be entitled to refuse to grant default judgment even if
the action was unopposed.
[24]
Although, the lack of
locus
standi
point on its own is good in law,
the other grounds contended by the defendant that the particulars of
claim are vague and embarrassing
also have merit. The plaintiff does
not explain how it arrived at the amount claimed. The other averments
lack the particularity
needed to enable the defendant to plead. These
points are, in my view, not just matters for evidence but averments
that are necessary
for the purposes of pleading.
[25]
For those reasons, the exception
must succeed and the plaintiff be afforded an opportunity to amend
its particulars of claim. A
number of interlocutory
applications were argued before me. I do not intend to distinguish
between them for the purposes of costs.
In my discretion I simply
allow costs against the plaintiff.
[26]
In the circumstances, I make the
following order:
1.
The application for default judgment is
refused.
2.
The exception succeeds and the plaintiff’s
particulars of claim are set aside. The plaintiff is afforded an
opportunity to
amend its particulars of claim, if so advised, within
15 (fifteen) days of this order.
3.
The plaintiff is to pay the defendant’s
costs.
N
P BOQWANA
Judge
of the High Court
APPEARANCES
For
the Plaintiff: Mr G Langenhoven of Langenhoven Attorneys
For
the Defendant: Mr J P Steenkamp
Instructed
by: Heidi Van der Meulen Attorneys
[1]
Tyulu
v Southern Insurance Association Ltd
1974
(3) SA 726 (E)
[2]
McNally
NO and Others v Codron and Others
2012
JDR 0385 (WCC)
at
para 19
[3]
See
Erasmus
Superior Court Practise
,
Second Edition, Van Loggernberg at D1-305;
Van
Zyl NO v Bolton
1994 (4) SA 648
(C) at 651 D-E;
AAIL
(SA) v Muslim Judicial Council
1983 (4) 855 (C) at 860 B – H;
Anirudh
v Samdei
and Others
1975 (2) SA 706
(N).